10 S.E.2d 42 | Ga. | 1940
1. Under the rules of inheritance from bastards, as established by statute in this State, if the bastard dies leaving no wife, issue, mother, or illegitimate brothers or sisters, or descendants thereof, his brothers and sisters of legitimate blood are his heirs at law.
2. When with the consent of his natural parents a child is adopted by another woman, the adopting mother is the mother of the child within the purview of the rules of inheritance; and if she be dead, the fact that the natural mother is still living will not prevent his brothers and sisters from taking by inheritance, as stated above. *657
3. In determining who are the heirs of a deceased child, who may bring an action to enforce a contract of adoption of the child against the estate of the promisor (the suit seeking a recovery of realty only), it should be considered as if that had been done which ought to have been done; that is, as if the contract had been actually consummated.
4. So considered, the brothers and sisters of the deceased child were the proper parties plaintiff to bring an action of such character, even though the natural mother of the child was still in life.
Under our law relating to inheritance from bastards (Code, § 113-904), the order of inheritance is as follows: (1) issue and widow; (2) mother, illegitimate brothers and sisters, equally; (3) (or if no mother) illegitimate brothers and sisters, and descendants thereof; (4) legitimate brothers and sisters and their descendants; (5) with further provisions for degrees more removed. It appears that at the death of the bastard in this case he had no widow or issue, and no illegitimate brothers and sisters. It follows that unless he had a living mother within the meaning of these rules, the plaintiffs as his brothers and sisters of legitimate blood would be his heirs. We think now, as we thought before, that the rights of the parties as regards the present cause of action must be considered as if that had been done which ought to have been done; that is, as if the contract of adoption had been actually consummated. In the former decision we held that the bastard's mother (Magnolia) could not in such case be treated as his mother within the purview of the rules of inheritance. It would seem to follow, that, the adopting mother (Maggie) having died before the child died, there is no mother to be taken into consideration in applying for the purposes of the present case the rules of inheritance. This leaves the plaintiffs as the bastard's heirs at law. It is true, as contended by the plaintiffs in error, that "illegitimates have no inheritable blood except that given by express law:" but it is also true that the legislature has full power to fix such rules of inheritance as they may see fit to enact. Alexander v. Lamar, supra. We are applying what, in our judgment, the legislative body has enacted on this subject.
Counsel for the plaintiffs in error cites Pair v. Pair,
Judgment affirmed. All the Justices concur.
Rehearing denied. *660